The following case is interesting as it discusses an important issue when the legal system and the public collide. Family law cases often deal with sensitive information including the names of parties, the behaviour of the parties, as well as detailed financial disclosure, to name a few. The issue this case examines is the need to protect children from the sensitive information included in family law cases being released to the public and the public policy need of openness in the legal system.
In the case at hand the parties were married in September 1995, had two children now ages 12 and 13, and separated 14 years later. An important detail of the parties is that they are a high profile family in Ottawa. The case outlines how the children had struggled emotionally with parties’ separation. It detailed the mother’s fear that children’s peers would learn about the proceedings and that her children would be bullied as a result. In order to minimize the stress and anguish of the children and to further protect them from the public, the mother brought a Motion for an Order sealing the file and identifying the parties and children by their initials only.
The Judge began her analysis with a brief discussion of the 2003 Ontario Court of Appeal case K. (M.S.) v. T (T.L.). The mother in this case was from an extremely wealthy and well-known family. She wanted to have file sealed to ensure her daughter’s safety. The Court found that given the risk of potential harm to the child, her best interests required that an exception be made to the general rule in favour of openness and ordered the entire court file to be sealed. The Court stressed that the order was made because it was in the child’s best interests.
The Judge in K. (M.S.) v. T. (T.L.) explained that there is a strong public policy in favour of openness, as the public confidence in the integrity of the court system and the public understanding of the administration of justice are fostered by openness. She furthered that exceptions to this public policy are only justified where it is necessary to protect social values of superordinate importance. She explained that courts ought to ensure children are not harmed by virtue of being the focus of litigation. She illustrates a paradox by stating that the protection of children is a social value of superordinate importance, however the principle of public access to court proceedings and documents is also a social value of superordinate importance.
So how do we resolve this paradox of two important social values?
The Judge posed two questions: 1) To what extent does the litigation itself create actual or potential harm to the child?, and, 2) If the litigation does enhance the risk of harm, is there a method other than sealing the entire court file by which that enhancement of risk can be eliminated?
In the end, the Judge in K. (M.S.) v. T. (T.L.) held that child could be at risk of harm through abduction as the mother’s wealth would attracted media attention, and thus those members of society who would want to abduct the child for ransom. She held that the entire file should be sealed.
The Judge in the case at hand, outlined the rigorous necessity branch of the Dagenais Mentuck test.
This test focuses on the existence of a serious risk to a public interest that can only be addressed by some form of non-publication or sealing order. If that test is met, the Judge may proceed to the second part of the test, where the competing interest must be balanced. At that stage, the Judge must consider whether the order sought is necessary to protect the social value of superordinate importance or whether a lessor order would suffice.
The Judge was presented with evidence of the children’s issues including how they were struggling emotionally, becoming fascinated with suicide, and learning about ‘cutting’. The children, the Judge was told, were becoming nervous, sensitive, isolated, unable to fall asleep at night, and experiencing nightmares. The mother explained her fears for her children, predicting that they will be bullied, especially through the use social media, including Facebook.
The judge was satisfied that the case at hand was likely to attract media attention due to the prominence of the family. The judge stated that the application contained damaging information about the father, and that the case file might also contain significant financial disclosure. The judge also held that the children, at their vulnerable stage, were at risk of significant emotional harm.
However, the judge was not convinced that entire file needed to be sealed. She held that the prominence and wealth of the family is likely to result in information becoming publicly available, but there is no sign of risk arising directly from the financial details of the case, as was the case in K. (M.S.) v. T. (T.L.).
The judge ordered that the parties be identified by their initials only and that information relating to the damaging information about the father, and to the custody and access of the children shall be sealed.
What this case subtly illustrates is that identifying parties by initials in family law cases does not interfere the public policy need for openness. Family law is an area of law where a file can contain all of an individual’s personal information. Why should this sensitive information be freely available in the public domain just because the individual is getting a divorce? Furthermore, just because one family is wealthier, or well-known in society should not afford any more protection than a family with less money, or who is less ‘popular’ in the community. All family law files should be identified by initials only. This formality should be adopted in Ontario and it should be adopted right away. It is absolutely absurd that individuals need to spend money on a Motion to effect such a simple outcome. The question regarding the redaction of portions of a file, and/or complete sealing of file should, on the other hand, be dealt with on a case by case basis.